Domestic Violence Act: SC's attempt at making law gender neutral obstructive to reality of women

A recent Supreme Court ruling has made it possible for women to be prosecuted by other women under the Protection of Women Against Domestic Violence Act (DV Act), and lawyers and activists working against domestic violence are worried about the repercussions that this change could have.

When the DV Act came into force in October 2006, its intent was specific: to provide maintenance, shelter, or interim finances to a woman subjected to domestic violence or harassment by an adult male. Last week, this changed: while hearing a case that had been discharged by the Bombay High Court because it concerned two females — a woman and a minor — the Supreme Court ordered the elimination of the phrase "adult male" from Section 2Q of the statute book, calling it discriminatory.

Now anyone, irrespective of age or gender, can be prosecuted under the Act. In its judgment, the Supreme Court portrays this as a move that will be more in tune with the objectives of the Act because it will acknowledge that women can be "abettors" to violence in the home. But lawyers we spoke to were critical of the judgement, expressing concern that it would encourage husbands to file counter cases against their wives through their mothers or sisters. Audrey D'Mello, Programme Director at Majlis, an all-women team of lawyers and social activists, says, "Mothers-in-law will accuse [their] daughters-in-law of committing violence, [and] this will deny women their basic rights and lead to utter confusion."

File photo of Supreme Court. AFP

Rebecca John, a senior advocate at Delhi High Court, says, "I can conceive that there are times when a mother-in-law may be subjected to a fair degree of abuse during proceedings, and the facts of a particular case might compel the Court to give an order in favour of the man. But this broad-stroked move negates the objects and reasons of the Act, and will make it lose its efficacy and have a serious rippling effect when it is followed in subordinate courts."

John emphasises that the Act should be looked at contextually — one of the primary reasons behind its coming into being was the violence inflicted on married women (the law extends to women in live-in relationships as well), and this change will serve to dilute the Act. D'Mello says that the overwhelming majority of the cases filed under the DV Act are by women attempting to safeguard themselves against violence from their husbands. She feels that cases in which there aren’t any adult men in the family, like the one that persuaded the Court to take this step, should be handled on an individual basis and that it was completely unnecessary to alter the law for the purpose.

Both John and D’Mello refer to another regressive judgment made earlier this month by the Supreme Court, which stated on 7 October that a Hindu man is entitled to divorce his wife if she attempts to separate him from his family, and emphasise that the judiciary still holds extremely patriarchal values. The matrimonial home is still viewed as a place of sanctity, and as John states, it is completely unacceptable that cultural norms have been used to suggest that the Hindu home is "an undivided sacred place rather than an entity created by the husband and wife as equal partners."

A long struggle went into implementing the DV Act, and lawyers like Indira Jaising battled to convince the Court that even a single act of violence should count as domestic violence. How effective it has actually been on the ground is debatable. Ensuring that maintenance is provided to victims after they file cases appears to be nearly impossible, according to Donna Fernandes, a coordinator at Vimochana, an organisation that works for women’s rights. She was vocal about her anger regarding the inefficacy of the Act: "Nobody is getting any relief from the DV Act. It is meant to provide interim relief, but protection officers do not enforce this and in some cases, it takes years for women to receive even Rs 5,000. How can they put together a gender-neutral law when there is such a power imbalance in the family — every day we deal with women who are beaten up by their in-laws or face sexual violence in the privacy of their bedrooms to the point where they can’t begin to narrate their experiences."

Aarti Mundkur, a lawyer at the Bengaluru family court, believes it is too early to speculate on the ramifications that the change in the DV Act could have, but is uneasy about the removal of the word "adult" because it implies that the Act could now potentially have juvenile persons as respondents. "Because there are no criminal provisions, there is no question of dealings with the juvenile board, and what relief claim can you impose on a minor? Relief is almost always financial — maintenance, compensation and alternate residences, can all be claimed only against an adult," she says.

Activists in the field have denigrated the judgement and predicted disastrous consequences. Pouruchisti Wadia, Associate Director of the Prevention of Violence Against Women and Children Program at SNEHA, a Mumbai-based NGO, seems to think that this judgement would add to the ongoing struggle to make the DV Act effective on the ground. "I have seen multiple cases where the mother-in-law evicted both the son and his wife, following which the son would take the wife to a house but act hand-in-glove with his mother and suddenly stop paying rent, so the woman would be evicted. In one case, a woman was left without any shelter. We struggled to get this law for 10 years and now this judgement will have a very negative impact," she says.

By all accounts, the Court’s attempts at making the law gender neutral is contrary to the lived reality of the women who are abused at home on a regular basis. An appallingly unfair dynamic exists already, and the Court’s decision might end up intensifying and complicating this.

The Ladies Finger (TLF) is a leading online women’s magazine delivering fresh and witty perspectives on politics, culture, health, sex, work and everything in between.